Patriot Act provision could limit inmate appeals

WASHINGTON—Anthony Spears has been on Arizona's death row for nearly 13 years, convicted of the murder of his girlfriend near Phoenix. He isn't an international terrorist, has no links to al-Qaida and was in prison on 9-11.

But tucked away in the pending renewal of the Patriot Act—the nation's controversial law to fight terrorism—is a provision inspired by Spears.

Republican Sen. Jon Kyl of Arizona inserted little-noticed language that could make it harder for state death-row inmates to appeal their cases in federal court.

The provision is one of a handful that neither the House of Representatives nor the Senate has voted on but which Republican lawmakers crafted during closed-door negotiations last year after Democrats had been excluded from the talks.

Another obscure addition, never debated in Congress, would broaden existing laws that prohibit disturbances at any event—such as those involving the president—at which the Secret Service is providing protection. Civil libertarians say it could restrict free-speech rights in the name of security.

The changes illustrate how closed-door negotiations over legislation can inspire lawmakers to slip substantive policy measures into bills with little public notice.

The House has voted for the amended Patriot Act, but the Senate hasn't yet.

The death penalty changes would make it easier for states to benefit from faster federal-appellate procedures in capital punishment cases. Under a law that passed in 1996, states that take steps to ensure that poor murder defendants are represented by competent counsel can ask for a fast-track system in which inmates have shorter deadlines to file their appeals.

Under current law, federal courts of appeals decide whether states can speed up processing capital cases. Kyl's change would give that power to the U.S. attorney general.

Arizona had tried to dismiss Spears' federal appeal in 2000, claiming it was filed too late. State officials had argued that the state was entitled to a faster appeals process because state law guaranteed effective representation for poor defendants who were facing the death penalty.

The 9th U.S. Circuit Court of Appeals ruled in 2002 that Arizona had the safeguards to qualify for faster appeals. But it said the state hadn't supplied Spears with a lawyer in a timely fashion and allowed him to proceed with his case. Spears, who's now married to the forewoman of the jury that convicted him, is awaiting a decision on his claim of innocence.

"It has become apparent that unless there is a change in the procedures for qualifications, even states that try to comply are not going to be able get it," Kyl said. "We're delegating part of the decision-making process, as we frequently do, to the executive branch."

Some criminal justice experts disagree with the idea of taking a key decision on inmate rights out of the hands of judges and giving it to the attorney general, the nation's top prosecutor.

"All the state had to do was to come up with a way to appoint counsel in a timely manner," said Dale Baich, the federal assistant public defender who handled Spears' appeal. "To insert a provision into the Patriot Act to try and fix this relatively small problem is like using a sledgehammer to try to kill a flea."

The Secret Service provision, which Sen. Arlen Specter, R-Pa., added, would make it a federal crime to trespass or create a disturbance at a "special event of national significance" such as the Super Bowl even if the president isn't in attendance. Under current law, people who enter security zones set up by the Secret Service to protest the president or others while they're at the event can be arrested and face imprisonment for up to six months.

"It expands the jurisdiction that the Secret Service has over its ability to put in place these exclusion zones," said Timothy Edgar, the policy counsel for national security at the American Civil Liberties Union.

Specter and his aides say the language is designed simply to allow the Secret Service to set up a protective perimeter and secure it before the president or another person in its care arrives.

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The Patriot Act is set to expire Friday. Democrats and a handful of Republicans have blocked renewal of the act because they want to add civil liberties protections. Because negotiations continue, the House and Senate are expected to extend the current law by a month to six weeks as early as Wednesday.

Provisions that were inserted into the legislation after the House and Senate had passed separate versions of the new act include:

_An expansion of the Secret Service's ability to prohibit trespassing or disorderly behavior at big national events, such as Super Bowl games and political conventions. Under current law it's a federal crime to cause a disturbance at events that are attended by a person who's protected by the Secret Service. The change would apply to such events even if the person in the Secret Service's care weren't present.

_Language that makes it illegal to hold phony passes to events protected by the Secret Service. Current law makes it illegal to hold fake passes issued by an agency of the federal government. The change applies to passes issued by any group organizing a protected event.

_Adding the homeland security secretary to the presidential line of succession. The change places the secretary in the 18th spot, right behind the secretary of veterans affairs. Some Republicans had wanted the homeland security-succession slot to be the ninth, right behind the attorney general.

_A new position of assistant attorney general for national security, which would require Senate approval. The position would oversee the Justice Department's main national security offices: the Office of Intelligence and Policy Review and the counterterrorism and counterespionage sections of the department's Criminal Division.